■  ERSITY  OF  CALIFORNIA,  SAN  DIEGO 


3  1822  00726  3601 


Carnegie  Endowment  for  International  Peace 

DIVISION  OF  INTERCOURSE  AND  EDUCATION 

Publication  No.  16 


GROWTH  OF  LIBERALISM  IN  JAPAN 


Two   Addresses   Delivered   by 
TSUNEJIRO  MIYAOKA 

of  the  Bar  of  Japan 

I 

Before  the  American  Bar  Association  at  Cleveland,  Ohio 
on  August  29,  1918 

II 

Before  the  Canadian  Bar  Association  at  Montreal 

on  September  5.  1918 


WASHINGTC 

1918 


Carnegie  Endowment  for  International  Peace 

DIVISION  OF  INTERCOURSE  AND  EDUCATION 

Publication  No.  16 


GROWTH  OF  LIBERALISM  IN  JAPAN 


Two   Addresses   Delivered   by 
TSUNEJIRO  AillYAQKA 

of  the  Bar  ofJapan 

I 

Before  the  American  Bar  Association  at  Cleveland,  Ohio 
on  August  29,  1918 

II 

Before  the  Canadian  Bar  Association  at  Montreal 

on  September  5,  1918 


WASHINGTON,  D.  C. 
1918 


J6? 

m 


PREFACE 

It  is  a  significant  mark  of  the  growth  of  international  influence  and  interna- 
tional opinion  that  both  the  American  Bar  Association  and  the  Canadian  Bar  Asso- 
ciation should  have  invited  a  representative  of  the  Bar  of  Japan  to  deliver  formal 
addresses  at  their  annual  meetings  of  1918.  It  is  almost  equally  significant  that 
Mr.  Miyaoka,  to  whom  these  most  complimentary  invitations  were  addressed  and 
who  was  fortunately  able  to  accept  them,  took  as  his  general  topic  the  Growth  of 
Liberalism  in  Japan.  In  tracing  the  history  of  the  safeguard  of  civil  liberty  in 
Japan  and  the  growth  of  representative  government  in  that  nation,  Mr.  Miyaoka 
made  a  timely  and  most  helpful  contribution  to  our  understanding  of  the  spirit  and 
underlying  tendencies  in  contemporary  Japanese  life  and  thought. 

Any  people  which  is  engaged  in  sedulously  safeguarding  civil  liberty  and  in 
systematically  developing  representative  government  is  genuinely  a  liberal  people. 
Liberalism  has,  or  rather  should  have,  a  pretty  definite  connotation  when  used  of 
English  and  American  political  thought  and  action.  It  acquired  that  connotation 
through  more  than  three  hundred  years  of  struggle,  strife  and  constructive  prog- 
ress. It  is  a  splendid  and  a  noble  term,  and  for  that  very  reason  there  are  those 
who  would  now  tear  it  from  its  historic  foundations  and  apply  it  to  all  forms  of 
crude  and  destructive  radicalism  and  repression  of  individual  liberty  and  oppor- 
tunity. Such  a  clear  misuse  of  the  term  Liberal  is  to  be  stoutly  resisted  wherever 
it  makes  its  appearance.  That  which  Mr.  Miyaoka  traces  with  such  fulness  of 
knowledge  is  genuine  Liberalism,  and  not  a  false  and  specious  form  of  political 
development  which  masquerades  under  that  name. 

Mr.  Miyaoka's  visit  to  the  United  States  and  to  Canada  has  been  the  occasion 
for  renewed  demonstrations  of  the  high  appreciation  in  which  the  peoples  of  those 
countries  hold  the  people  of  Japan  and  of  the  growing  solidarity  of  opinion  among 
the  nations  who,  between  them,  influence  every  form  of  public  life  in  lands  which 
touch  upon  the  Pacific  Ocean. 

Nicholas  Murray  Butler, 

Acting  Director. 
November  i,  iprS. 


I 

THE  SAFEGUARD  OF  CIVIL  LIBERTY  IN  JAPAN 

BY 

TSUNEJIRO  MIYAOKA 

OF  THE  BAR  OF  JAPAN 

Presented    at    the  meeting  of  the  American  Bar    Association  at  Cleveland,  Ohio, 

August  29,  1918 

The  honor  you  have  conferred  upon  me  by  inviting  me  to  be  your  guest  and 
to  deliver  an  address  before  you  today  is  regarded  by  the  Bar  of  Japan  as  a 
tribute  paid  to  it  by  a  sister  organization  of  older  standing,  and  consequently  of 
greater  prestige.  At  the  dinner  given  me  by  the  members  of  that  bar  on  the  eve 
of  my  departure,  I  was  instructed  by  them  to  convey  to  you  their  cordial  greet- 
ings and  the  assurance  that  they  hope  the  day  will  not  be  far  distant  when  they 
may  have  the  pleasure  of  having  one  of  you  to  be  our  guest  and  deliver  an 
*iddress  before  us. 

The  Constitution  of  Japan^  provides  among  other  things  that  the  Japanese 
subjects  may,  according  to  qualifications  determined  in  laws  or  ordinances,  be 
appointed  to  civil  or  military  qr  any  other  public  offices  equally ;  that  Japanese 
subjects  are  amenable  to  the  duty  of  paying  taxes,  according  to  the  provisions  of 
law;  that  Japanese  subjects  shall  have  the  liberty  of  abode  and  changing  the 
same  within  the  limits  of  law ;  that  no  Japanese  subject  shall  be  arrested,  detained, 
tried  or  punished  unless  according  to  law ;  that  no  Japanese  subject  shall  be 
deprived  of  his  right  of  being  tried  by  the  judges  determined  by  law ;  that,  except 
in  cases  provided  for  in  the  law,  the  house  of  no  Japanese  subject  shall  be 
entered  or  searched  without  his  consent ;  that,  except  in  the  cases  mentioned  in 
the  law,  the  secrecy  of  the  letters  of  ever}-  Japanese  subject  shall  remain  inviolable, 
that  the  right  of  property  of  every  Japanese  subject  shall  remain  inviolable,  sub- 
ject to  such  provisions  of  law  as  may  be  enacted  for  public  benefit :  that  Japanese 
subjects  shall,  within  limits  not  prejudicial  to  peace  and  order,  and  not  antag- 
onistic to  their  duties  as  subjects,  enjoy  freedom  of  religious  belief ;  that  Japanese 
subjects   shall,   within   the  limits   of   law.   enjoy  the   liberty  of   speech,   writing. 

1  The    Constitution    of    Japan    was    promulgated    by    the    late    Emperor    Mutsuhito    on 
February  11,  1889,  and  took  effect  from  November,  1890. 


2  GROWTH  OF  LIBERALISM  IN  JAPAN 

publication,  public  meetings  and  associations/  These  guarantees  would  be  of 
little  value  unless  the  Constitution  itself  provided  for  the  machinery,  legislative, 
executive,  and  judicial,  whose  duty  it  is  to  see  to  it  that  these  guarantees  are 
successfully  carried  out  in  practice. 

The  legislative  power  of  Japan  is  vested  in  the  Emperor  and  a  bicameral 
legislature  called  the  Imperial  Diet.  The  Diet  consists  of  an  upper  chamber 
known  as  the  House  of  Peers  and  a  lower  chamber  known  as  the  House  of  Rep- 
resentatives. The  upper  chamber  corresponds  to  the  House  of  Lords,  and  the 
lower  to  the  House  of  Commons  in  Great  Britain. 

Article  37  of  the  Constitution  of  Japan  provides: 

Every  law  requires  the  consent  of  the  Imperial  Diet. 

Article  62  of  the  same  document  provides,  in  effect,  that  the  imposition  of  a 
new  tax  or  a  modification  of  the  existing  rate  of  any  tax,  except  all  such  adminis- 
trative fees  as  are  in  the  nature  of  compensation  for  a  special  service  rendered 
by  a  government  official  shall  be  determined  by  law.  The  same  article  also  pro- 
vides that  the  raising  of  national  loans  and  the  contracting  of  other  liabilities 
to  the  charge  of  fiscus  (National  Treasury)  requires  the  consent  of  the  Imperial 
Diet.     Article  65  of  the  Constitution  of  Japan  provides : 

The  budget  shall  be  first  laid  before  the  House  of  Representatives. 

The  time  honored  adage  of  the  British  Constitution  that  the  House  of  Commons 
holds  the  purse  string  is  therefore  worked  out  in  practice  in  Japan,  The  Em- 
peror is  the  chief  executive  as  well  as  the  commander  in  chief  of  the  army  and 
navy,  but  the  English  constitutional  principle  that  the  "King  can  do  no  wrong" 
also  finds  its  place  in  the  Constitution  of  Japan,  for  it  says  "the  Emperor  is 
sacred  and  inviolable."-  The  question  remains  "If  the  sovereign  can  do  no 
wrong,  who  is  responsible?"  In  the  excellent  address  which  he  delivered  at  your 
meeting  last  year,  Mr.  Robert  McNutt  McEIroy,  of  New  Jersey,  recalled  the 

1  See  Articles  19  to  29  of  the  Constitution  of  Japan. 

The  Constitution  makes  the  reservation  to  the  effect  that  the  various  guarantees  -are 
subject  to  the  exercise  of  powers  appertaining  to  the  Emperor  in  times  of  war  or  in  cases 
of  a  national  emergency.  When  the  Emperor  declares  a  state  of  siege,  there  may  be  an 
entire  or  a  partial  suspension  of  those  guarantees.  It  is  the  prerogative  of  the  Crown  to 
declare,  in  time  of  war  or  insurrection,  a  state  of  siege  in  any  particular  locality,  or  over 
the  whole  Empire.  However,  the  Emperor  himself  is  not  authorized  to  determine  how 
far  the  constitutional  guarantees  of  civil  liberty  may  be  suspended.  The  law  provides  the 
effect  which  the  Imperial  declaration  of  a  state  of  siege  shall  have  upon  the  enjoyment  of 
civil  liberty. 

2  Article  3  of  the  Constitution  of  Japan. 


THE   SAFEGUARD  OF  CIVIL  LIBERTY  3 

words  used  by  William  Pitt  in  the  resignation  he  presented  to  King  George  the 
Third.  That  Minister  of  the  Crown  declared, 

I  consider  myself  called  to  the  post  of  Prime  Minister  by  the  people  of 
England,  to  whom  I  consider  myself  responsible.  I  will  not  remain  respon- 
sible for  measures  I  am  no  longer  allowed  to  guide. 

The  Constitution  of  Japan  is  silent  as  a  sphinx  when  it  comes  to  the  ques- 
tion to  whom  the  Ministers  of  State  are  held  accountable.  Article  55  of  the 
Constitution  merely  declares 

The  respective  Ministers  of  State  shall  give  their  advice  to  the  Em- 
peror, and  be  responsible  for  it. 

All  laws,  Imperial  Ordinances,  and  Imperial  Rescripts  of  whatever  kind 
that  relate  to  the  affairs  of  State  require  the  counter  signature  of  a  Minister 
of  State. 

If  any  law,  ordinance,  or  a  rescript  is  issued  and  made  public  by  the  Em- 
peror over  his  own  signature,  but  without  the  counter-signature  of  one  or  more 
Ministers  of  State,  such  law,  ordinance  or  rescript  is  null  and  void.  Reading 
Article  55  side  by  side  with  the  declaration  of  Article  3  to  the  effect  that  "the 
Emperor  is^  sacred  and  inviolable,"  there  will  be  no  doubt  in  the  mind  of  an 
American  jurist  as  to  the  party  to  whom  the  Ministers  of  State,  collectively  called 
the  Cabinet,  are  accountable.  Thus  far  it  has  been  maintained  in  practice  that 
the  responsibility  of  the  Cabinet  Ministers  is  one  owing  to  the  Crown  and  not 
to  the  Imperial  Diet.  At  acute  stages  of  Japan's  internal  political  struggle  this 
point  comes  up  perennially  for  debate  in  the  House  of  Representatives ;  but 
manifestly  it  is  a  point  on  which  men  will  differ  according  as  they  take  conserva- 
tive or  liberal  views  of  things. 

Now  that  the  great  Emperor  who  gave  a  written  Constitution  to«  his  people, 
as  well  as  the  majority  of  the  great  men  who  served  him  in  the  work,  are  no 
longer  with  us,  many  of  the  things  that  were  thought  and  said  at  the  counsel 
table  when  the  draft  of  the  Constitution  was  examined,  discussed  and  adopted, 
will  never  come  to  light.  The  Emperor  Mutsuhito  was  so  broad  in  his  vision, 
and  to  his  piercing  eye  the  remote  future  was  so  near,  that  at  times  his  Ministers 
of  State  failed  to  see  what  it  was  that  prevented  His  Majesty  from  giving  Im- 
perial sanction  to  a  measure  recommended.  To  me  Article  55  of  the  Constitu- 
tion of  Japan  is  more  significant  for  what  it  omits  to  say  than  for  what  it  men- 
tions. Compare  the  first  paragraph  of  Article  55  with  Article  5,  for  example, 
which  declares  "the  Emperor  exercises  the  legislative  power  with  the  consent 
of  the  Imperial  Diet" ;  or  with  Article  Z7  which  says,  "Every  law  requires  the 
consent  of  the  Imperial  Diet."    The  language  of  the  Japanese  Constitution  is  so 


4  GROWTH  OF  LIBERALISM  IN  JAPAN 

terse,  so  simple  and  so  direct,  that  it  is  evidently  a  work  of  a  group  of  men  who 
lacked  neither  clearness  of  vision  nor  precision  in  the  art  of  expressing  thoughts. 
We  shall  probably  do  justice  alike  to  the  greatness  of  the  Emperor,  whom  we 
now  call  by  his  posthumous  title  Meiji,  as  well  as  to  the  faithful  devotion  of  his 
able  Ministers,  if  we  take  the  view  that  the  first  paragraph  of  Article  55  was 
purposely  left  a  political  sphinx.  The  transition  of  Japan  from  an  absolute  to  a 
constitutional  form  of  monarchy  in  1890  was  of  course  surrounded  by  many 
dangers. 

The  total  collapse  of  Russia,  as  well  as  the  partial  success  of  the  republican 
form  of  government  in  China,  are  but  reminders  of  a  political  wisdom  which 
the  world  has  known  for  ages.  No  vital  change  in  the  form  of  government  can 
be  adopted  by  a  people  without  risk  of  the  complete  undermining  of  the  reign 
of  law.  There  is  always  a  danger  of  the  whole  people  running  mad  in  the  ecstasy 
of  newly  acquired  liberty  and  in  the  consciousness  of  a  newly  vested  power.  To 
you  who  are  so  familiar  Vv^ith  the  growth  of  the  jurisdiction  of  the  Court  of 
Chancery  in  England  as  well  as  in  the  British  colonies  on  this  continent,  it  is 
unnecessary  for  me  to  say  that  laws  are  modified  not  merely  by  acts  of  legisla- 
ture, but  are  susceptible  of  change  by  interpretation.  Nor  is  the  reversal  of  an 
interpretation  the  sole  prerogative  of  law  courts.  We  see  among  us  today 
familiar  faces  of  many  distinguished  jurists  who  at  one  time  or  another,  as 
Attorneys  General  of  the  United  States,  or  of  one  or  another  of*  the  several 
States  of  the  Union,  deliberately  changed  the  course  of  administration  of  law, 
so  far  as  the  executive  branches  of  the  respective  governments  with  which  they 
were  identified  were  concerned.  Is  it  not  reasonable  to  suppose  that  the  Japanese 
nation,  in  its  wisdom  and  in  its  own  time,  will  solve  its  constitutional  problem  in 
a  manner  best  adapted  ro  its  genius  and  the  requirements  of  the  age? 

Article  57  of  the  Constitiition  of  Japan  provides  that  "The  judicature  shall 
be  exercised  by  the  courts  of  law,  according  to  law,  in  the  name  of  the  Emperor" 
and  that  "The  organization  of  the  courts  of  law  shall  be  determined  by  law." 
The  Constitution  further  provides  that  the  "Judge  shall  be  appointed  from  among 
those  who  possess  proper  qualifications  according  to  law  and  that  no  judge  shall 
be  deprived  of  his  position  unless  by  way  of  criminal  sentence  or  disciplinary 
punishment,  the  rules  of  which  shall  be  determined  by  law."^ 

1.   Personal  Liberty 

As  the  most  important  of  civil  liberties,  let  us  take  up  first  of  all  the  ques- 
tion of  protection  accorded  to  persons,  that  is  to  say  the  question  of  arrest, 

1  See  Article  58  of  the  Constitution  of  Japan.  See  also  Law  Relating  to  the  Or- 
ganization of  Law  Courts,  which  was  promulgated  on  February  10,  1890,  and  took  effect 
from   November    1,    1890. 


THE  SAFEGUARD  OF  CIVIL  LIBERTY  5 

•detention,  trial  and  punishment.  This  phase  of  the  subject  can  not  be  made  in- 
telHgible  without  saying  a  few  words  regarding  the  public  procurators  and  the 
judges  of  preliminary  examination.  There  are  four  grades  of  law  courts  in 
Japan  apart  from  certain  special  courts  such  as  the  Administrative  Court,  the 
Maritime  Court  or  the  special  jurisdiction  of  the  Patent  Office  in  matters  re- 
lating to  patents,  trade  marks,  etc.^ 

To  every  court  is  attached  an  office  of  the  public  procurators.  The  public 
procurators  are  regarded  as  one  body.  It  is  a  body  of  state  attorneys  at  the 
head  of  which  stands  the  Attorney  General  who  acts  as  the  chief  procurator 
of  the  Court  of  Cassation  and  has  under  his  control  all  the  other  state  attorneys. 
It  is  this  body  of  state  attorneys  which  conducts  prosecutions  in  behalf  of  the 
state.  In  every  District  Court  there  are  one  or  more  judges  of  preliminary 
examination.  They  are  named  by  the  Ministers  of  Justice  from  among  the 
judges  of  the  court  in  pursuance  of  a  provision  contained  in  the  Taw  of  the 
Organization  of  Law  Courts.-  It  is  this  system  of  preliminary  examination  that 
has  so  often  been  held  up  by  the  enemies  of  Japan  as  the  machinery  for  the 
oppression  of  her  people.  This  is  no  more  nor  less  than  an  examination  by  the 
juge  d'instruction  in  France,  and  serves  precisely  the  same  purpose  as  an  indict- 
ment before  a  grand  jury  in  this  country. 

Just  as  a  defendant  is  discharged  under  the  x\nglo-American  system,  if  the 

1  The  lowest  court  is  called  the  Local  Court.  The  one  above  it  is  the  District  Court. 
Then  come!  the  Courts  of  Appeal,  and  above  all  there  is  one  Court  of  Cassation  which  is 
the  highest  tribunal  of  the  Empire  and  unifies  the  interpretation  of  laws  both  in  criminal 
and  civil  matters.  Each  of  the  courts  except  the  lowest  has  one  or  more  civil  and  criminal 
departments.  In  the  lowest  court,  if  there  are  two  or  more  judges,  the  work  may  be 
divided  among  the  judges  in  accordance  with  the  rules  laid  down  by  the  Minister  of  State 
for  Justice,  so  that  it  is  quite  possible  to  have  one  judge  attending  to  criminal  matters  and 
another  judge  attending  to  civil  matters   only. 

The  jurisdiction  of  the  lowest  court  in  criminal  matters  is  limited;  firstly,  to  crimes 
punishable  with  imprisonment  not  exceeding  thirty  days  or  fine  not  exceeding  twenty  yen, 
which  is  equivalent  to  ten  dollars  United  States  currency.  (Japan  is  a  gold  standard 
country,  and  its  currency  is  on  the  decimal  system.  Yen,  which  is  the  standard  unit,  is  equiva- 
lent to  fifty  cents  of  United  States  currency,  though  at  present  the  rate  of  exchange  is 
slightly  against  the  United  States.)  Secondly,  the  criminal  jurisdiction  of  a  Local  Court 
is  limited  to  such  cases  only  as  have  not  been  submitted  to  preliminary  examination. 
Whether  a  case  shall  be  submitted  to  preliminary  examination  or  not  is  determined  by 
the  following  rules.  If  the  crime  with  which  the  defendant  is  charged  is  one  that  makes 
him  liable  to  capital  punishment  or  imprisonment  for  life,  or  if  the  prescribed  minimum 
term  of  imprisonment  is  one  year  or  more,  then  the  public  procurator  must  ask  for  a 
preliminary  examination.  It  is  only  when  the  judge  of  the  preliminary  examination  decides 
that  the  case  shall  go  to  trial,  that  the  public  procurator  is  permitted  to  bring  the  case 
before  the  court  in  the  usual  waj'.  In  cases  where,  as  the  result  of  investigation  undertaken 
by  him,  the  public  procurator  is  satisfied  that  the  offense  is  one  for  which  the  minimum 
term  of  imprisonment  is  less  than  one  year,  with  or  without  hard  labor,  then  in  such  case 
it  is  optional  for  him  either  to  ask  for  preliminary  examination  or  to  submit  the  case 
forthwith  to  the  public  trial  of  the  District  Court  to  which  he  is  attached. 

2  See  Article  21  of  Law  of  Organization  of  Law  Courts,  promulgated  as  Law  No.  6 
on  February  10,  1890. 


6  GROWTH  OF  LIBERALISM  IN  JAPAN 

grand  jury  does  not  find  a  true  bill  against  him,  so  under  the  Franco- Japanese 
system  a  person  is  not  subjected  to  the  indignity  of  a,  public  trial  on  an  alleged 
offense  of  a  serious  character,  unless  and  until  a  judge  of  preliminary  examina- 
tion has  thoroughly  examined  the  case  and  pronounced  his  judgment  that  there 
is  a  prima  facie  case  against  the  defendant.^  A  tribunal  is  composed  of  three 
judges  both  in  a  District  Court  as  well  as  in  a  Court  of  Appeals.  In  the  Local 
Court,  which  has  jurisdiction  in  minor  offenses  only,  the  judge  sits  alone;  in  the 
Court  of  Cassation  five  judges  compose  a  tribunal  which  hears  argument  for 
and  against  the  appeal  on  error  of  law.  In  all  cases,  without  exception,  both  the 
prosecution  as  well  as  the  defendant  has  the  right  of  appeal.  A  case  originating 
in  a  Local  Court  goes  on  appeal  to  that  District  Court  in  whose  jurisdiction  that 
Local  Court  is  situated.    A  case  tried  in  the  first  instance  in  one  of  the  District 


^A  judge  of  preliminary  examination  is  not  authorized  to  issue  a  warrant  of  arrest 
against  the  defendant  forthwith  upon  the  filing  of  a  prosecution  by  a  public  procurator 
except  in  cases  where  the  defendant  has  no  determined  place  of  abode,  where  there  is 
danger  of  his  escape  or  his  tampering  with  the  evidence  of  his  guilt,  or  where  the  de- 
fendant is  charged  with  the  attempt  of  a  criminal  act,  or  with  duress,  or  intimidation,  and 
there  is  actual  danger  of  his  further  committing  the  ofifen?e.  Except  in  such  cases  the 
judge  of  preliminary  examination  must  confine  himself  to  the  issue  of  a  writ  of  summons, 
allowing  at  least  twenty-four  hours  between  the  service  of  the  writ  and  the  time  the  de- 
fendant is  required  to  appear  before  the  judge.  The  judge  is  further  interdicted  from 
issuing  a  writ  of  arrest  until  and  after  he  has  personally  examined  the  defendant  and  is 
satisfied  that  the  latter  is  charged  with  a  crime  which  upon  conviction  makes  him  liable 
at  least  to  a  penalty  of  imprisonment.  (See  Articles  69,  72  and  75  of  the  Code  of  Criminal 
Procedure  of  Japan.)  The  Code  of  Criminal  Procedure  further  provides  that  whenever 
and  as  soon  as  a  judge  of  preliminary  examination  is  persuaded  that  the  act  with  which 
the  defendant  is  charged  does  not  make  him  liable  to  imprisonment  with  or  without  hard 
labor  or  any  heavier  penalty  than  that,  he  must  forthwith  cancel  the  writ  of  detention  and 
set  the  prisoner  free.  (Article  86.)  The  law  dequires  the  judge  of  preliminary  examination 
to  begin  the  investigation  of  the  case  submitted  to  him  by  a  personal  examination  of  the 
defendant  himself,  that  is  to  say,  the  examination  of  the  defendant  must  precede  the 
examination  of  any  other  party,  complaint,  witness  or  party  in  interest.  (Article  93.) 
The  judge  of  preliminary  examination  is  expressly  prohibited  from  taking  recourse  to  any 
form  of  threat,  intimidation  or  falsehood  with  a  view  to  extract  from  the  defendant  a 
confession  of  his  guilt.      (Article  94.) 

The  law  declares  that  no  visit  to  the  place  of  the  commission  of  the  offense,  or  any 
other  place,  domiciliary  searches,  seizures  of  things,  or  examination  of  a  defendant  or  a 
witness  can  be  conducted  by  a  judge  of  preliminary  examination  without  the  attendance 
of  a  clerk  of  the  court  who  shall  make  a  minute  of  proceedings  and  sign  the  same  with 
the  judge  himself.  (See  Article  92  of  the  Code  of  Criminal  Procedure.)  As  the  examina- 
tion of  the  defendant  by  the  judge  progresses,  the  clerk  of  the  court  must  record  the 
questions  of  the  judge  and  the  answers  given  by  the  defendant.  Upon  completion  of  the 
examination  the  clerk  must  read  the  record  to  the  defendant,  whereupon  the  judge  shall 
ask  the  defendant  whether  it  is  satisfactory  to  him.  If  the  defendant  requests  the  record 
should  be  changed  in  any  particular,  the  judge  must  ask  in  what  manner  he  wishes  the 
record  altered,  and  thje  questions  as  well  as  the  answers  given  must  be  recorded  in  the 
minutes  of  the  examination.  (See  Articles  95  and  96  of  the  Code  of  Criminal  Procedure.) 
The  defendant  has  the  right  to  have  a  copy  of  the  minutes  of  his  examination  supplied  to 
him.  (Article  97.)  It  is  the  duty  of  the  judge  of  the  preliminary  examination  to  investi- 
gate all  the  facts  which  are  favorable  to  the  defendant  equally  as  those  that  are  against 
him.     (Article   103.) 


THE  SAFEGUARD  OF  CIVIL  LIBERTY  7 

Courts  goes  on  appeal  to  that  Court  of  x'Vppeal  which  has  jurisdiction  over  that 
District  Court.  There  is  always  a  new  trial  on  appeal.  On  an  error  of  law 
there  is  always  a  further  appeal  from  the  decision  of  the  court  which  heard 
the  case  on  appeal,  whether  that  court  may  be  a  District  Court  or  a  Court  of 
Appeal.  The  appeal  on  error  goes  direct  to  the  Court  of  Cassation.  In  this 
way  the  uniformity  of  the  interpretation  of  law  is  maintained.  In  the  Court  of 
Cassation  there  are  several  civil  and  criminal  departments.  In  the  event  that  one  of 
the  civil  or  criminal  departments  of  the  Courts  of  Cassation  finds  it  proper  to 
render  a  judgment  differing  on  a  point  of  law  from  the  decision  previously  ren- 
dered by  one  or  more  departments  of  the  same  court,  then  the  presiding  judge 
of  that  department  must  ask  the  president  of  the  court  to  convene  a  joint  sitting 
of  all  the  criminal  or  all  the  civil  departments,  or  of  all  the  departments  taken 
together.  In  such  a  case  the  arguments  for  the  appellant  and  the  respondent 
are  heard  in  the  plenary  sitting  of  the  departments  convened  or  the  entire  court, 
as  the  case  may  be,  and  the  decision  is  given  by  the  court  so  sitting.^ 

The  Code  of  Criminal  Procedure  declares  that  no  restraint  may  be  placed 
on  the  person  of  a  defendant  at  his  public  trial,  that  he  shall  be  free  to  employ 
one  or  more  counsel  to  defend  him,  and  that  with  the  permission  of  the  court 
he  may  even  employ  a  person  other  than  a  qualified  attorney  at  law  to  act  as  his 
defender.  If  the  defendant  is  younger  than  fifteen  years  of  age  or  a  woman, 
deaf  or  dumb,  or  shows  symptoms  of  unsound  mind,  or  if  for  any  other  reason 
the  court  deems  it  desirable  to  employ  a  counsel,  the  court  may,  upon  the  motion 
of  the  prosecution  or  of  its  own  accord,  appoint  a  counsel  to  defend  the  person 
accused.^ 

2.   Freedom  from  Domiciliary  Visit 

Cases  in  which  officers  of  the  law  are  authorized  to  go  into  an  inhabited 
house  without  the  consent  of  the  occupant,  are  limited,  firstly,  to  cases  where 
a  policeman  or  a  gendarme  armed  with  a  warrant  of  arrest  has  reason  to  believe 
that  the  person  named  on  such  warrant  is  hidden  in  his  own  or  in  another  man's 
residence.  In  such  a  case  the  presence  of  the  mayor  of  the  city,  town  or  village, 
as  the  case  may  be,  or  the  presence  of  two  neighbors  is  required  in  order  to 
enable  the  policeman  or  the  gendarme  to  make  the  search  in  the  premises.  Such 
mayor  or  neighbors  must  sign  with  the  policeman  or  gendarme  the  minutes  of 
the  proceedings   prepared  by   the   latter.^ 

Secondly,  judges  of  preliminary  examination  are  authorized  to  make  similar 

1  See  Law  of  Organization  of  Law  Courts,  Articles  49  and  54. 

2  Code   of    Criminal    Procedure,   Articles    177,    179,    179   bis. 

3  Ibid.,  Article  78. 


8  GROWTH  OF  LIBERALISM  IN  JAPAN 

domiciliary  visits  to  the  house  of  a  person  charged  with  the  commission  of  a 
crime  or  of  a  person  suspected  of  keeping  in  his  possession  a  document  or  a 
thing  that  would  prove  the  guilt  of  the  accused.  In  case  the  defendant  or  the 
person  suspected  of  keeping  in  his  possession  important  proof  of  the  guilt  of 
the  accused,  is  absent  from  his  home,  the  presence  of  a  member  of  his  family 
or  a  relative  living  with  him,  and  in  the  latter's  absence  the  presence  of  the 
mayor  of  the  city,  town  or  village,  as  the  case  may  be,  is  required.^  No  domi- 
ciliary search  may  be  made  either  by  the  police  or  gendarme  or  by  a  judge  of 
preliminary  examination  after  sunset  and  before  sunrise  except  in  hotels,  restau- 
rants and  other  like  places  which  may  be  visited  during  the  hours  the  place  in 
question  is  actually  open  to  the  public.^ 

Thirdly,  there  is  a  statute  called  the  Law  of  the  Exercise  of  Administrative 
Authority  which  empowers  competent  administrative  officials  to  enter  into  houses 
without  the  consent  of  the  occupant  even  during  the  hours  between  sunset  and 
sunrise,  in  cases  where  such  officials  have  reason  to  believe  that  there  is  imminent 
danger  to  life  or  property,  or  that  gambling  or  prostitution  is  actually  going  on 
in  the  premises.  The  same  law,  moreover,  authorizes  such  competent  adminis- 
trative officials  to  visit  hotels,  restaurants  and  other  similar  public  establishments 
during  the  time  they  are  open  to  the  public.^ 

3.    Privacy  of  Correspondence 

According  to  Article  133  of  the  Penal  Code  of  Japan,  a  person  who  has 
opened  a  sealed  letter  of  another  without  justifiable  cause  is  liable  to  imprison- 
ment, with  or  without  hard  labor,  for  a  term  not  exceeding  one  year  or  a  fine 
not  exceeding  two  hundred  yen. 

Article  52  of  the  Postal  Law  of  Japan  provides  that  a  person  who  has- 
tampered  with  mail  matter  while  in  the  custody  of  the  postal  administration, 
or  has  delivered  it  to  a  person  other  than  the  rightful  addressee  is  punishable 
by  imprisonment,  with  or  without  hard  labor,  for  a  term  not  exceeding  three 
years  or  a  fine  not  exceeding  five  hundred  yen.* 

Similar  penal  provisions  are  found  in  the  Telegraph  Law  of  Japan  with 
respect  to  the  crimes  of  tampering  with  sealed  telegraphio  messages  or  divulging 
matters  forming  the  subject  of  correspondence  by  telegraph  or  telephone.^  The 
Penal  Code  contains  further  provisions  regarding  the  destruction  of  official  docu- 

1  Code  of  Criminal   Procedure,  Article   104. 

2  Ibid.,  Articles  78  and  104. 

3  See  Article  2  of  the  Law  of  Exercise  of  Administrative  Authority  of  June  2,   1900.. 
*  Postal  Law  of  Japan  of  March  13,  1900. 

5  Articles  31  and  35  of  the  Telegraph  Law  of  Japan.     (Law  No.  59  of  March  14,  1900.) 


THE  SAFEGUARD  OF  CIVIL  LIBERTY  9 

ments   and  papers,   writings,   memoranda   and   other   instruments   belonging   to 
others  that  relate  to  rights  and  duties.^ 

4.    Liberty  of  Conscience 

There  is  no  law  in  Japan  that  relates  to  the  limitation  of  faith  or  that  gives 
preference  to  any  form  of  religion.  As  there  are  so  many  temples  and  shrines 
of  Buddhist  and  Shinto  religion  in  the  country,  there  is  naturally  a  large  body 
of  statutes  and  regulations  relating  to  the  secular  administration  of  sects  or  the 
enjoyment  of  property  rights  by  ecclesiastical  corporations.  The  wording  of 
Article  28  of  the  Constitution  of  Japan  is  so  simple  and  direct  that  it  requires 
no  supplementary  legislation  to  give  effect  to  its  provision.  Freedom  of  religious 
belief  is  only  limited  by  the  condition  that  the  belief  shall  not  be  prejudicial  to 
peace  and  order,  nor  incompatible  with  the  duties  which  an  individual  as  a 
Japanese  subject  owes  to  the  sovereignty  of  the  Empire. 

5.   Right  of  Property 

Now  proceeding  to  an  examination  of  legal  limitations  to  rights  of  property 
I  would  state  that  the  expropriation  of  land  for  educational,  scientific  or  philan- 
thropic purposes,  as  well  as  for  such  public  purposes  as  railroads,  public  high- 
ways, bridges,  river  embankments,  canals,  docks,  harbors,  aqueducts,  transmis- 
sion of  electricity,  laying  of  gas  pipes,  sewer  pipes,  etc.,  is  permitted  in  Japan 
as  in  many  other  countries.  The  Cabinet,  that  is  to  say  the  office  of  the  Prime 
Minister,  determines  whether  a  certain  work  contemplated  by  a  given  individual 
or  corporation  is  of  such  a  character  as  to  warrant  the  application  of  the 
Expropriation  Law  to  land  needed  for  the  furtherance  of  that  work.  In  the 
affirmative  case  the  Cabinet  issues  a  public  notice  to  that  effect,  whereupon  the 
local  governor  of  the  place  where  the  expropriation  will  take  place  gives  a  public 
notice  specifying  the  pieces  of  land  affected  by  the  decision  of  the  Cabinet,  or 
otherwise  notifies  the  parties  whose  rights  are  involved. 

The  party  that  is  entitled  to  v'^xpropriate  must  negotiate  with  the  owner  of 
the  land  concerned  as  to  the  amount  of  compensation  payable.  In  the  event  the 
parties  fail  to  come  to  an  agreement,  the  party  in  whose  behalf  the  Expropria- 
tion Law  has  been  set  in  motion,  is  authorized  to  ask  for  the  award  of  a  land 
expropriation  commission  composed  of  seven  persons.  The  local  governor  is 
the  chairman  of  that  commission,  while  three  of  the  six  members  are  appointed 
from  among  higher  officials  of  the  Imperial  Government,  and  the  remaining  three 
are  chosen  by  the  prefectural  council  from  among  their  own  number.    A  prefec- 

1  Penal  Code  of  Japan    .'Articles  258  and  259. 


10  GROWTH  OF  LIBERALISM  IN  JAPAN 

turaj  council  is  an  elective  body  and  corresponds  to  the  board  of  aldermen  in 
cities.  There  is  one  prefectural  council  to"  each  local  government.  An  owner 
of  the  land  unsatisfied  with  the  amount  of  compensation  awarded  by  the  land 
expropriation  commission  may  bring  an  action  for  the  determination  of  the 
amount  of  compensation  in  the  law  courts  against  the  party  trying  to  expropriate 
him.  On  all  points  covered  by  the  decision  or  award  of  the  land  expropriation 
commission  other  than  what  relates  to  compensation,  the  party  that  believes  its 
right  infringed  by  the  award  may  bring  an  action  before  the  Administrative 
Court.i 

Conditions  relating  to  military  exactions  are  determined  by  Law  No.  43  of 
August  12,  1882.  Such  exactions  are  only  permissible  if  required  by  the  Japanese 
Army  or  Navy  in  connection  with  its  mobilization.  That  law  also  requires 
that  whatever  is  expropriated  must  be  paid  for,  and  minute  provisions  are  em- 
bodied in  that  law  relating  to  the  assessment  of  the  amount  of  compensation 
due  the  owner  of  things  appropriated. 

6.   Safeguard  Against  Inequitable  Taxation 

The  provisions  of  the  Constitution  declaring  in  effect  that  no  tax  can  be 
imposed  except  in  pursuance  of  a  law,  and  that  all  laws  require  the  consent  of 
the  Imperial  Diet  are  perfectly  clear.  However  it  is  permissible  to  inquire 
how  the  taxation  laws  are  enforced.  It  is  obviously  impossible  to  go  into  a 
careful  examination  of  such  a  matter  within  the  narrow  compass  of  a  single 
address.  However  the  democratic  spirit  which  pervades  the  legislation  of  Japan 
relating  to  the  levy  and  collection  of  taxes  will  be  apparent  if  T  refer  to  certain 
features  of  the  Business  Tax  Law  and  the  Income  Tax  Law.- 

All  over  the  country  there  are  scattered  about  a  large  number  of  internal 
taxation  offices  which  in  the  United  States  would  be  called  offices  of  the  col- 
lectors of  internal  revenue.  The  entire  country  for  the  purposes  of  the  collection 
of  internal  revenue  is  divided  into  supervising  districts,  so  that  within  the  juris- 
diction of  an  internal  taxation  supervising  officer  there  are  a  number  of  internal 
taxation  offices,  each  of  which  has  its  own  district. 

The  factors  which  are  to  serve  as  the  basis  of  calculation  in  the  assessment 


1  See  Expropriation  Law  of  March  7,  1900,  as  amended  by  Law  No.  15  of  1914.  Re- 
gardins:  the  organization  and  jurisdiction  of  Administrative  Court,  see  Law  No.  48  of 
June  30,  1890. 

-  Business  Tax  Law  now  in  operation  was  promulgated  as  Law  No.  33  on  March  28, 
1896. 

Income  Tax  Law  now  in  operation  is  the  Revised  Income  Tax  Law  of  February  13, 
1899. 

See  particularly  Articles  26,  27  and  28  of  the  Business  Tax  Law  and  Articles  11,  12, 
14,  15,  28,  31,  36,  37  and  39  of  the  Income  Tax  Law. 


THE  SAFEGUARD  OF  CIVIL  LIBERTY  11 

•of  income  or  business  tax  are  specified  in  the  laws  themselves,  but  the  question 
as  to  which  schedule  or  what  factors  stated  in  the  Business  Tax  Law  are  ap- 
plicable to  a  particular  case  or  what  the  amount  of  taxable  income  is,  is  a  question 
of  fact  to  be  determined  in  each  case.  For  the  determination  of  such  facts  the 
Business  Tax  Law  as  well  as  the  Income  Tax  Law  requires  that  assessment 
committees  shall  be  chosen  from  among  the  taxpayers  themselves.  The  election 
is  by  double  election,  that  is  to  say,  the  electoral  college  is  chosen  by  the  tax- 
payers at  the  rate  of  one  elector  to  every  ten  taxpayers ;  provided,  however,  that 
not  more  than  twenty  electors  shall  be  appointed  in  each  electoral  district.  The 
twenty  men  so  chosen  elect  the  necessary  number  of  men  to  form  the  assessment 
t:ommittee. 

If  any  taxpayer  is  dissatisfied  with  the  assessment  made  by  the  committee 
and  communicated  to  him  by  the  government,  he  has  a  right  of  appeal  to  the 
government  which  must  in  turn  submit  the  case  to  the  investigation  committee 
composed  of  three  taxation  officials  and  four  members  of  the  assessment  com- 
mittee.    In  other  words  the  democratic  element  is  in  the  majority. 

If  the  government  accepts  the  decision  of  the  investigation  committee  while 
the  taxpayer  is  dissatisfied,  the  recourse  of  the  latter  is  an  administrative  action 
"before  the  Administrative  Court. 

7.   Liberty  of  Speech,  Writing  and  Publication 
Article  52  of  the  Constitution  of  Japan  declares : 

No  member  of  either  House  of  the  Imperial  Diet  shall  be  held  respon- 
sible outside  the  respective  Houses  for  any  opinion  uttered  or  for  any  vote 
given  in  the  House.  \Mien,  however,  a  meml3er  himself  has  given  publicity 
to  his  opinions  by  public  speech,  by  documents  in  print,  or  in  writing,  or 
by  any  other  similar  means,  he  shall  in  that  matter  be  amenable  to  the 
general  law. 

.  The  restrictions  on  the  liberty  of  speech,  writing  and  publication  are  con- 
tained in  Law  No.  36  of  March  10,  1900,  called  the  Law  of  Public  Safety  Police, 
the  Penal  Code,  the  Law  of  Publication^  and  the  Press  Law."^  In  none  of  these 
laws  is  there  any  restriction  on  the  legitimate  enjoyment  of  the  freedom  of 
speech.  The  Penal  Code  of  Japan,  like  that  of  any  other  civilized  nation  with 
monarchical  form  of  governm -nt,  contains  special  clauses  relating  to  the  crime 
of  slander  and  libel  committed  against  the  Emperor  or  members  of  his  family. 
in   addition  to   ordinarv   cases    of    slander   and   libel    generallv.      The   Laws   of 


1  Law  No.  15  of  April  14,  1893. 

2  Law  No.  41  of  May  6,   1909. 


12  GROWTH  OF  LIBERALISM  IN  JAPAN 

Public  Safety  Police  and  of  Publication,  as  well  as  the  Press  Paw,  provides 
that  matters  relating  to  the  preliminary  examination  of  offenses  shall  not  be 
discussed  in  public  speech,  in  printed  books  or  pamphlets,  or  in  the  press,  that 
criminals  shall  not  be  made  objects  of  public  encomium  or  approbation,  that 
nothing  tending  to  subvert  the  political  institution  of  the  country  or  otherwise 
leading  to  a  breach  of  public  peace,  nor  anything  contrary  to  good  morals  shall  be 
publicly  discussed.  These  are  measures  which  all  civilized  states  adopt  for  their 
own  safety.  No  official  documents  relating  to  diplomatic,  military  or  other  state- 
secrets,  which  have  not  been  divulged  by  the  departments  of  the  government 
concerned,  may  be  made  public,  and  the  Ministers  of  State  for  War,  for  the 
Navy  and  for  Foreign  Affairs  are  authorized  to  prohibit  publication  in  the  press 
of  matters  which  for  military  or  diplomatic  reasons  should  not  be  made  public. 
It  is  impossible  for  me  to  enter  at  this  place  into  a  more  detailed  examination 
of  the  provisions  of  the  laws  referred  to,  but  I  assure  you  that  the  limitations 
imposed  are  for  the  good  of  the  country. 

8.   Liberty  of  Associations  and  of  Public  Meetings 

No  secret  society  is  permitted  in  Japan.  The  Law  of  Public  Police  contains 
regulations  governing  the  formation  of  political  parties,  political  gatherings,  and 
outdoor  demonstrations. 

Conclusion 

The  more  you  see  of  us  and  the  more  you  hear  us  speak,  tlie  more  you  will 
be  convinced  that  we  do  things  in  Japan  much  in  the  same  way  as  you  do  in 
this  country.  The  quaint  customs,  the  oddity  of  things,  the  picturesque  in  the 
scenery,  attire  and  the  ways  of  life  in  distant  lands  appeal  to  the  imagination. 
In  the  description  of  Japan  which  travelers  and  sojourners  from  this  country 
have  given  you,  emphasis  has  been  placed  on  points  wherein  we  differ  from  you. 
The  points  of  resemblance  are  never  noted  for  the  reason  that  the  realities  of 
life  are  prosaic.  On  the  one  hand,  we  have  been  depicted  as  a  nation  of  poets 
who  do  nothing  else  but  sit  under  plum  blossoms,  sip  tea  and  sing  the  glory  of 
the  moon.  On  the  other  hand;  we  have  been  described  as  an  exceedingly  polite 
people  who  never  think  of'  their  own  convenience  or  inclination,  but  to  whom 
the  will  and  the  pleasure  of  others  are  law,  who  consider  that  if  their 
rights  are  invaded  it  is  simply  a  matter  to  be  met  by  a  pleasant  smile. 
Such  an  extraordinary  overestimation  of  Japanese  character,  which  we  do  not 
merit,  serves  no  useful  purpose.  It  does  not  draw  the  peoples  of  the  two  coun- 
tries an  inch  nearer  to  each  other,  but  each  remains  a  strange  people  to  the  other. 

In  this  great  war  in  which  the  attention  of  all  thinking  men  is  centered,  it  is 
questioned  here  and  there  whether  Japan  has  not  misplaced  herself  in  siding 


THE  SAFEGUARD  OF  CIVIL  LIBERTY  13 

with  the  AlHes  against  the  Central  Empires  of  Europe.  In  the  laconic  brevity 
of  mottoes  and  slogans  there  is  always  the  danger  that  the  vulgar  and  the  unthink- 
ing may  misinterpret  the  meaning  intended  to  be  conveyed.  When  President 
Wilson  declared  that  this  was  a  war  of  democracy  versus  autocracy,  manifestly 
he  did  not  mean  that  this  is  a  war  of  republicanism  versus  monarchism 
The  people  of  the  United  States  are  the  last  people  on  earth  to  deny  to  another 
people  the  right  to  choose  that  form  of  government  which  the  latter  thinks 
is  best  adapted  to  itself.  Is  not  Germany's  denial  to  some  of  the  unfortunate 
people  under  her  sway  of  the  right  to  choose  their  own  sovereignty,  one  of 
the  crimes  for  which  we  hold  her  responsible?  The  United  States  went  into 
this  war  because  the  German  warfare  against  commerce  was  a  challenge  to 
all  mankind.  It  is  for  the  vindication  of  human  right  that  this  nation  is  stirred 
to  the  core. 

Japan  has  the  same  ideals  to  which  you  are  dedicated.  We  stand  for  the 
rights  of  humanity.  If  in  this  brief  address  I  have  made  clear  to  you  some  of 
the  fundamental  principles  on  which  our  legislation  is  based,  if  I  have  shown 
that  the  Japanese  people  are  not  the  kind  of  people  to  quietly  submit  to  the 
invasion  of  their  rights  or  the  curtailment  of  personal  liberty,  I  may  congratu-. 
late  myself  on  having  contributed  something  towards  the  better  understanding 
between  our  two  countries. 

When  it  is  suggested  that  Japan  is  misplaced  in  this  war  because  this  is  a 
war  of  democracy  against  monarchy,  I  see  the  subtle  working  of  German  propa- 
ganda. Germany  is  determined  that  Japan  and  the  United  States  shall  not  be 
friends ;  Germany  today  is  sowing  the  seeds  of  mistrust  between  us  with  the 
same  insistence  that  has  marked  her  activity  in  that  direction  ever  since  Japan 
has  become  a  factor  to  be  considered  in  world  politics.  If  you  will  recall  with 
what  punctilious  observance  of  the  rules  of  civilized  warfare  Japan  fought  her 
wars  of  1894-95  and  1904—05,  and  if  you  will  consider  the  manner  in  which  we 
safeguard  the  civil  liberty  of  our  people  at  home,  you  will  perceive  that  we  place 
justice  and  right  over  material  prosperity,  military  efficiency,  or  achievements 
in  science  and  in  art. 


II 

THE  GROWTH  OF  REPRESENTATIVE  GOVERNMENT 

IN  JAPAN 

BY 

TSUNEJIRO  MIYAOKA 

OF   THE    BAR    OF   JAPAN 

Presented  at  the  Meeting  of  the  Canadian  Bar  Association,  at  Montreal, 

September  4,  1918 

On  March  14  of  the  lunar  calendar  in  the  year  1868  of  the  Christian  era"^ 
the  late  Emperor,  whom  we  would  like  to  be  known  by  his  posthumous  name 
Meiji  Tenno,  took  the  following  oath  at  the  sanctuary  vdedicated  to  the  worship 
of  his  Imperial  ancestors  :- 

1.  Widely  representative  institutions  for  deliberation  shall  be  established, 
and  the  aftairs  of  state  shall  be  determined  in  accordance  with  public  opinion. 

2.  The  sovereign  and  the  people  shall  unite  as  one  man  in  the  vigorous  exe- 
cution of  the  policies  of  the  Empire. 

3.  The  common  people  no  less  than  the  civil  and  the  military  officers  shall 
be  permitted  to  pursue  the  respective  objects  of  their  lives,  and  we  must  see 
to  it  that  no  cause  for  discontent  is  given  anywhere. 

4.  Unworthy  customs  of  old  shall  be  abolished,  and  things  shall  be  adjusted 
in  accordance  with  the  eternal  principle   of   justice. 

5.  Wisdom  and  knowledge  shall  be  sought  throughout  the  world,  and  the 
power  of  the  Empire  shall  thereby  be  strengthened. 

These  five  principles  consecrated  by  the  oath  of  the  great  Emperor  may  be 
said  to  embody  the  whole  of  the  policy  by  means  of  which  Japan  has  attained 
her  present  position  among  the  nations  of  the  world.  The  system  of  compulsory 
education  so  successfully  carried  out  that  the  percentage  of  illiteracy  in  Japan 
is  one  of  the  smallest  in  the  world,  has  its  foundation  on  this  Imperial  oath. 
The  representative  institutions  of  the  government  now  so  prevalent  in  the  central 
as  well  as  the  local  administration  of  the  country  is  the  direct  result  of  this 
declaration.    In  short  the  so-called  Five  Articles  of  the  Imperial  Oath  form  the 

1  On  December  3  (lunar  calendar)  in  the  year  1872  Japan  adopted  the  Gregorian  calendar. 
In  this  address  up  to  that  time  dates  are  given  in  the   lunar  calendar. 

-  Komei  Tenno  died  on  December  25,  1866,  and  his  only  son  Meiji  Tenno  formally 
ascended  the  throne  on  January  9,    1867. 


THE  GROWTH  OF  REPRESENTATIVE  GOVERNMENT  15 

Magna  Charta  not  only  of  political  liberties  but  of  all  the  social  changes  which 
have  been  wrought  in  Japan  within  the  last  fifty  years. 

To  show  you  the  spirit  in  which  this  oath  was  taken  and  proclaimed  to  the 
people  of  Japan,  let  me  translate  a  paragraph  from  the  manifesto  issued  by 
Meiji  Tenno  to  his  people  on  March  14,  1868.    His  Majesty  declared: 

Since  the  middle  ages  of  our  history  the  Imperial  regime  has  declined  and 
powerful  military  families  have  one  after  another  in  succession  exercised 
the  real  prerogative  of  the  sovereign.  Those  military  families  invariably 
pretended  to  show  the  greatest  respect  to  the  Imperial  Court,  but  the  respect 
paid  was  of  such  a  character  as  to  remove  the  Emperor  farther  and  farther 
away  from  his  people.  The  Emperor  is  at  once  the  father  and  the  mother 
of  the  people  of  this  country.  If  he  is  placed  on  a  high  pedestal  and  is 
worshiped,  but  the  means  of  knowing  the  wishes,  the  desires  and  the 
needs  of  his  children  are  cut  away  from  him,  he  becomes  a  sovereign  only 
in  name.  Then  the  glory  of  the  Imperial  Court  becomes  a  sham  and  the 
Emperor  no  longer  wields  real  power. 

If  the  Emperor  and  his  people  do  not  live  closer  together,  how  can  I, 
as  your  sovereign,  properly  discharge  my  duties?  I  have  now  taken  into 
my  hands  the  prerogative  of  my  ancestors.^  If  henceforth  there  should  be 
a  man  or  a  woman  whose  just  rights  are  denied  to  him  or  her,  I  am  account- 
able for  such  a  deplorable  state  of  affairs. 

In  the  arduous  work  of  meeting  the  vicissitudes  of  our  national  exist- 
ence I  shall  work  and  work  till  my  bones  ache,  always  standing  in  the  fore- 
front of  my  people.  It  shall  be  my  constant  aim  to  follow  in  the  footsteps 
of  my  Imperial  ancestors  in  promoting  the  welfare  of  the  nation.  It  is  my 
hope  that  by  so  doing  I  may  acquit  myself  of  the  heavy  responsibility  which 
rests  on  my  shoulders  as  your  sovereign. 

It  will  be  observed  that  the  whole  utterance  is  conceived  in  the  spirit  of  an 
entire  devotion  to  the  cause  of  the  people,  not  in  that  of  an  autocrat  who  claims 
as  his  due  blind  obedience  to  his  will  on  the  part  of  his  people.  Paradoxical  as 
it  may  seem  the  democratization  of  Japan  commenced  with  the  Imperial  Court 
as  the  center  of  the  movement. 

Baron  Hozum.i,  in  his  highly  instructive  work  entitled  Ancestor-lVorship 
and  Japanese  Lazv~  describes  the  fundamental  principle  of  the  Japanese  Govern- 
ment as  theocratico-patriarchal  constitutlonaUsm.     He  maintains  that  the  gov- 

1  Tokugawa  Yoshinobu,  the  fifteenth  and  the  last  Shogun  of  the  Tokugawa  family, 
tendered  to  the  Imperial  Throne  his  resignation  of  the  office  of  Shogun  and  surrendered 
his  prerogative  to  rule  the  Empire  by  virtue  of  delegated  authority,  on  October  14.  1867. 
His  resignation  and  surrender  of  authority  was  accepted  and  the  fact  formally  proclaimed 
by  Emperor  Meiji  on  December  9.  1867,  in  the  presence  of  his  Ministers  and  court  digni- 
taries in  the  Imperial  Palace  at  Kioto. 

2  The  work  is  in  English.  It  was  originally  prepared  as  an  address  and  was  delivered 
by  the  author  at  the  International  Congress  of  Orientalists  held  in  Rome  in  October,  1899. 
Its  third  and  revised  edition  appeared  in  Tokio  in  1913. 


16  GROWTH  OF  LIBERALISM  IN  JAPAN 

ernment  is  theocratical,  because  "the  Emperor  holds  the  sovereign  power,  not 
as  his  own  inherent  right,  but  as  an  inheritance  from  his  divine-ancestor." 
"The  Emperor  rules  over  the  coimtry  as  the  supreme  head  of  the  vast  family  of 
the  Japanese  nation."  Hence  the  Baron  concludes  the  government  is  patriarchal. 
^'The  Emperor  exercises  the  sovereign  power  according  to  the  Constitution  which 
is  based  on  the  most  advanced  principles  of  modern  constitutionalism.  The 
government  is  therefore,  constitutional."'^ 

Now  let  us  trace  some  of  the  landmarks  in  the  history  of  the  phenomenal 
transition  of  Japan  from  a  medieval  feudal  state  in  1868  to  a  modern  constitu- 
tional monarchy  with  all  the  forms  of  representative  government  in  national, 
local  and  municipal  administration. 

In  1867  we  see  Japan  imder  the  nominal  rule  of  the  Emperor  who  resided 
in  Kioto  surrounded  by  an  aristocracy  of  birth  called  Ktige,  commonly  known  as 
the  court  nobles  in  contradistinction  to  the  feudal  lords  who  formed  the  military 
aristocracy.  The  adage  of  English  constitutional  practice,  "The  King  reigns  but 
does  not  rule,"  was  in  no  country  more  true  than  in  feudal  Japan  when  she  was 
tinder  the  regime  of  dual  sovereignty  during  a  period  of  about  six  hundred  and 
eighty  years  from  1180  to  1867  of  the  Christian  era.  As  is  well  described  in  the 
Imperial  manifesto  of  March  14,  1868,  the  power  of  the  Emperor  was  nominal, 
while  the  all-powerful  chief  of  the  military  chiefs  really  ruled  the  country  under 
authority  delegated  by  the  Em.peror.  The  title  of  such  all-powerful  military  chief 
was  Shogun  which  meant  generalissimo  or  commander  in  chief  of  the  armies. 
The  Shogun  dynasties  rose  and  fell,  each  succeeding  Shogunate  exercising 
sway  over  the  realm  by  virtue  of  delegation  of  authority  from  the  reigning 
monarch.  The  appointment  of  a  Shogun  with  all  the  prerogatives  which  that  title 
■carried  with  it,  was  itself  an  act  of  the  Imperial  prerogative;  but  the 
irony  of  the  regime  was  that  the  Imperial  prerogative  was  and  had  to  be 
exercised  in  favor  of  the  head  of  that  feudal  family  which  had  subjugated  all 
the  rest  of  the  feudal  chiefs  in  the  realm.  The  last  period  of  the  Shogunate  was 
that  of  the  Tokugawa  family,  which  lasted  for  two  hundred  and  sixty-eight 
years. 

Thus  in  1867  the  Emperor  of  Japan  nominally  reigned  in  Kioto,  but  the  real 
government  of  Japan  which  had  in  its  hand  diplomatic  relations  with  foreign 
countries,  the  command  over  the  army  and  the  navy,  the  right  of  coinage  and  of 
working  gold,  silver  and  copper  mines,  as  well  as  the  administration  of  Buddhist 
and  Shinto  shrines  and  of  justice  in  all  important  cases,  was  the  government  of 
the  Tokugawa  Shogun.  The  seat  of  that  government  was  Yedo,  now  called 
Tokio.  Important  measures  of  policy  were  either  first  submitted  by  the  govern- 
ment to  the  Imperial  Court  at  Kioto  for  Imperial  approval  before  they  were 

1  See  pages  87-88  of  the  third  edition. 


THE  GROWTH  OF  REPRESENTATIVE  GOVERXMEXT  17 

executed,  or  were  merely  reported  for  information  after  they  were  carried  out. 
The  procedure  made  httle  diiterence.  for  if  the  measure  was  submitted  in  ad- 
vance the  Imperial  Court  was  expected  to  give  the  imprimatur  of  approval  to 
every  measure  recommended  by  the  Shogunate  government.  The  city  of  Yedo 
with  the  surrounding  districts,  as  well  as  many  other  strategically  and  econom- 
ically important  places  in  the  Empire,  were  placed  under  the  direct  rule  of  the 
government.  The  rest  of  the  country  was  divided  as  fiefs  among  the  feudal 
chiefs  who  were  either  relatives  or  vassals  of  the  Tokugawa  family  as  well  as 
among  those  who  were  originally  rivals  but  had  pledged  themselves  to  be  loyal 
supporters  of  that  regime.  The  number  of  such  fiefs  or  feudal  dominions 
amounted  to  more  than  two  hundred  and  seventy,  each  of  which  was  a  small 
kingdom  governed  by  the  respective  feudal  lord  subject  to  the  overlordship  of 
the  Tokugawa  Shogun.  The  surrender  to  the  Emperor  by  the  Tokugawa  Shogun 
in  1867  of  the  de  facto  sovereignty  directly  exercised  by  his  government  over 
important  territory  in  the  Empire  and  of  the  overlordship  exercised  over  the 
dominions  of  his  relatives,  vassal  chiefs  and  other  semi-independent  feudal 
chiefs,  struck  the  very  root  of  the  entire  regime.  Theoretically  this  was  merely 
a  political  change,  the  renunciation  of  the  hereditary  office  of  Shogun  by  Toku- 
gawa Yoshinobu,  the  fifteenth  Shogun  of  the  Tokugawa  Family.^ 

If  one  of  the  allied  feudal  lords  who  combined  to  declare  war  on  Tokugawa 
Yoshinobu  under  a  sealed  mandate  of  the  Emperor  at  Kioto  could  have  suc- 
ceeded in  ascending  the  throne  of  the  Shogun  left  vacant  by  the  abdication  of  the 
latter  on  October  14,  1867,  the  regime  of  dual  sovereignty  would  have  persisted 
in  Japan.  Such  an  eventuality  was,  however,  made  impossible  by  the  nature 
of  the  movement  which  culminated  in  the  downfall  of  the  Tokugawa  Shogunate. 

The  movement  was  started  as  a  revival  of  Imperialism.  It  was  justly 
argued  that  the  dismemberment  of  the  sovereignty  of  Japan  into  nominal  and 
real  sovereignty  was  nothing  short  of  high  treason.  The  nation  must  restore 
Imperial  power  to  where  it  rightly  belonged,  Avas  the  battle  cry.  The  success 
of  the  revolution  against  the  then  established  order  of  things  was  the  restoration 
of  the  real  regime  of  Imperialism  as  it  existed  in  Japan  prior  to  1180  A.  D. 

If  the  overlordship  of  Tokugawa  over  the  Empire  was  an  act  of  treason 
against  the  legitimate  sovereignty,  then  the  exercise  of  lordship  by  the  two  hun- 
dred and  seventy-odd  feudal  chiefs  over  their  dominions,  their  vassals  and  other 
inhabitants  of  such  dominions,  was  equally  incompatible  with  the  integral  main- 
tenance of  the  Imperial  prerogative.  The  Emperor  was  not  only  the  sovereign 
of  all  the  people  of  Japan  then  living,  but  was  the  lineal  descendant  of  the 
sovereigns  of  their  ancestors,  and  was  moreover  the  head  of  the  Imperial  house 

^  See  History  of  the  Political  Institutions  in  the  Meiji  Era,  by  Viscount  Kiyoura,  Tokio, 
1899,  page  9.    The  work  is  in  Japanese  and  has  not  been  translated  into  any  foreign  language. 


18  GROWTH  OF  LIBERALISM   IN  JAPAN 

which  was  older  than  the  history  of  Japan  and  stood  to  all  the  families  in  the 
Empire  in  the  relation  of  the  main  family  to  the  branch  families.^ 

According  to  the  Japanese  conception  of  things  there  may  be  distinction 
among  men  in  the  degree  of  honors  accorded  to  each  by  reason  of  their  personal 
attainments,  or  by  reason  of  descent,  that  is  to  say,  of  the  personal  attainments 
of  their  forebears.  The  intrusion  of  one  or  more  individuals  between  the  Em- 
peror who  is  the  head  of  the  nation,  on  the  one  hand,  and  the  people  of  Japan, 
who  are  equally  his  subjects,  is  inconsistent  with  the  conception  of  sovereignty 
vested  in  the  head  of  the  Imperial  family. 

Thus,  paradoxical  as  it  may  seem,  the  restoration  of  Imperialism  was  the 
first  step  onward  in  the  modernization  of  Japan,  for  so  long  as  the  country 
was  feudal  there  could  be  no  basis  for  constitutional  limited  monarchy. 

Until  July  14,  1871,  the  decentralization  of  Japan  with  the  ancient  feudal 
chiefs  as  the  governors  of  their  respective  dominions  continued,  excepting  such 
localities  as  were  under  the  immediate  administration  of  the  Tokugawa  govern- 
ment which  became  subject  to  the  direct  control  of  the  Imperial  Government  in 
1867. 

On  July  14,  1871,  an  Imperial  manifesto  was  issued  abolishing  the  regime  of 
administration  of  the  ancient  domains  by  their  respective  feudal  lords,  and  such 
domains  were  either  united  or  divided  up  into  smaller  parts  to  form  convenient 
administrative  units.  This  is  the  origin  of  the  modern  local  government  system 
of  Japan. 

In  April,  1868,  an  organization  of  government  was  adopted,  at  the  head 
of  which  stood  a  body  called  the  Council  of  State  (Giseikzvan) .  The  Council 
had  two  chambers,  the  higher  and  the^  lower.  The  higher  chamber  was  what  we 
now  would  call  the  Cabinet,  except  that  in  addition  to  its  executive  function,  it 
was  clothed  with  legislative  duties.  It  promulgated  laws  upon  the  approval  of 
or  in  obedience  to  the  command  of  the  Emperor.  Broad  lines  of  policy  were 
deliberated  upon,  subject  to  the  approval  or  veto  of  the  Emperor,  such  for  in- 
stance as  the  conclusion  of  treaties  with  foreign  Powers,  the  declaration  of  war, 
or  the  restoration  of  peace. 

The  lower  chamber  was  composed  of  delegates  commissioned  by  the  chiefs 
of  the  local  governments  who  were  at  that  time,  except  as  already  noted, 
the  feudal  lords  of  the  ancient  regime.  Herein  lies  the  beginning  of  modern 
representative  government  in  Japan.  In  January.  1868,  the  Emperor  Meiji  took 
the  oath  that  "Widely  representative  institutions  for  deliberation  shall  be  estab- 

1  See  Baron  Hozumi,  Ancestor-Worship  and  Japanese  Law,  3d  edition,  Tokio,  1913,. 
pages  88  and  102  to  105. 

See  also  The  Soul  of  the  Far  East  by  Percival  Lowell,  published  by  Houghton,  Mifflin 
Co.,  1898.  On  page  36  that  acute  observer  on  Japan  says,  "The  Empire  is  one  great 
family;  the  family  is  a  little  Empire," 


THE  GROWTH  OF  REPRESENTATIVE  GOVERNMENT  19 

lished,  and  the  affairs  of  state  shall  be  determined  in  accordance  with  public 
opinion";  and  within  a  period  of  four  months  such  a  deliberative  assembly  was 
constituted,  the  members  of  which  were  appointed  not  by  the  central  govern- 
ment but  by  the  chiefs  of  local  governments  who  continued  to  retain  a  large 
measure  of  autonomy  within  their  former  dominions.  The  function  of  this  body 
was  consultative  only,  but  all  important  questions  such  as  the  conclusion  of 
treaties  with  foreign  nations,  the  declaration  of  war  or  conclusion  of  peace, 
taxation,  military  service,  etc.,  were  submitted  to  its  deliberation  by  the  upper 
chamber.  This  was  therefore  a  means  of  ascertaining  what  at  that  time  was 
the  only  legitimate  public  opinion,  namely,  the  views  of  the  local  governments 
which  constituted  in  a  sense  imperio  in  imperio.  By  the  organization  of  April, 
1868,  a  judiciary  was  created  to  be  occupied  solely  with  the  administration  of 
justice  and  with  matters  of  police. 

In  July,  1869,  the  organization  was  more  or  less  changed,  but  the  lower 
•chamber  of  the  Council  of  State  was  continued  under  the  name  of  the  Assembly. 
The  members  were  not  commissioned  to  sit  in  this  Assembly  by  the  central 
government,  but  a  member  was  selected  by  the  chief  of  each  local  government 
from  among  the  officials  of  that  government.  The  term  of  office  of  the  mem- 
bers was  four  years,  and  every  two  years  one-half  of  the  total  number  went  out 
and  new  men  were  sent  to  take  the  places  vacated.  The  meetings  of  the  As- 
sembly were  held  on  stated  days  of  every  month,  and  its  deliberations  were  open 
to  the  public.  It  was  the  prerogative  of  the  Assembly  to  receive  petitions  from 
people  at  large  not  on  matters  concerning  themselves  individually  or  affecting 
the  interest  of  certain  localities  only,  but  on  the  broad  lines  of  policy  of  the 
Empire.  Such  petitions  when  deemed  worthy  of  official  attention  were  trans- 
mitted to  Daijogwan  which  was  the  highest  executive  bodv  immediately  subor- 
dinate to  the  Emperor.^ 

All  these  changes  are  carefully  described  by  Viscount  Kiyoura  in  his  work 
entitled  History  of  the  Political  Institutions  in  the  Meiji  Era.  published  in  Tokio 
in  1899.  That  work  is  in  Japanese,  and  no  translation  into  any  European  language 
has  been  made. 

In  July.  1871.  the  form  of  government  was  remodeled.  Two  chambers 
were  created  under  the  office  of  the  Prime  Minister  and  were  respectively  called 
the  Left  and  the  Right  Chamber.  Laws  were  promulgated  by  the  Prime  Minister 
in  obedience  to  the  command  of  the  Emperor,  but  it  was  the  dutv  of  the  Left 
Chamber  to  take  the  initiative  in  the  legislative  work  by  submitting  draft 
laws  to  the  Prime  Minister,  as  well  as  to  deliberate  and  pass  judgment  upon 
<iraft  laws  submitted  by  the  Premier.     The  Right  Chamber  was  the  meeting  hall 

^  See  Viscount  Kiyoura,  History  of  the  Political  Institutions  in  the  Mciji  Era,  page  19. 


20  GROWTH  OF  LIBERALISM  IN  JAPAN 

of  the  chiefs  of  the  executive  departments.  Measures  passed  by  the  Left 
Chamber  which  affected  the  executive  branch  of  the  government  were,  there- 
fore, submitted  by  the  Prime  Minister  for  advice  to  the  Right  Chamber.  So 
vice  versa  matters  passed  by  the  Right  Chamber  regarding  which  the  Prime 
Minister  thought  it  wise  to  call  for  an  expression  of  the  legitimate  public  opinion 
of  the  day,  were  submitted  to  the  deliberation  of  the  Left  Chamber.  The  Prime 
Minister,  subject  to  the  command  of  the  Emperor,  was  the  sole  judge  as  to  the 
wisdom  of  submitting  a  draft  law  for  deliberation  to  the  Left  Chamber  and  of 
adopting  or  rejecting  any  measure  recommended  by  either  chamber. 

From  December  3  of  the  lunar  calendar  in  the  year  1872  A.D..  which  was 
January  1,  1873,  Japan  adopted  the  Gregorian  calendar,  so  that  the  days  and  the 
months  of  all  the  dates  T  have  given  prior  to  that  date  are  the  days  and  the 
months  of  the  lunar  calendar,  while  the  days  and  the  months  of  all  subsequent 
dates  correspond  precisely  with  the  dates  of  the  Gregorian  calendar. 

In  April,  1875,  the  Chambers  of  the  Left  and  of  the  Right  were  abolished, 
and  a  Senate  composed  of  members  appointed  by  the  Crown  was  established. 
The  Senators  were  appointed  from  among  (a)  the  nobles,  that  is  to  say.  from 
among  the  ancient  feudal  lords  and  the  "court  nobles."  (b)  higher  officials  of 
the  government,  (c)  men  who  had  rendered  distinguished  services  to  the  state, 
•and  (d)  men  with  profound  knowledge  of  political  science  and  law.  This 
institution  was  therefore  the  embryo  of  the  House  of  Peers  which  first  came  into 
existence  in  1890  when  the  Imperial  Diet  was  opened  under  the  Constitution  of 
the  Empire.  Thus  the  Senate  which  was  created  in  1875  was  formally  dis- 
solved by  the  Emperor  on  October  20.  1890.    The  function  of  the  Senate  was — 

1.  To  deliberate  and  pass  judgment  upon  the  draft  laws  submitted  to   it 

by  the  Cabinet  in  obedience  to  the  Imperial  Command. 

2.  To  recommend  to  the  Crown,  of  its  own  initiative,  the  adoption  of  legis- 

lative measures  which  the  Senate  deemed  it  wise  to  enact  into  laws. 

3.  To  accept  petitions  from  any  person  or  persons  praying  for  the  enact- 

ment of  laws  on  any  subject. 

The  foregoing  is  a  brief  retrospect  of  the  gradual  adoption  in  Japan  of  an 
upper  chamber  of  the  legislature.  Now,  turning  to  the  development  of  a  more' 
representative  institution  in  the  central  government  of  Japan,  I  would  state  that 
in  May,  1874,  the  Assembly  of  Local  Governors  was  convened  at  Tokio.  With 
the  complete  abolition  of  feudalistic  local  governments  on  July  14,  1871.  the 
ancient  feudal  lords  ceased  to  be  the  governors  of  their  respective  ancient 
domains.  In  1874,  therefore,  all  the  local  governors  were  civil  functionaries 
appointed  by  the  central  government.  The  Assembly  under  review  was  com- 
posed entirely  of  local  governors,  and  was  convened  at  Tokio  at  least  once  a 


THE  GROWTH  OF  REPRESENTATIVE  GOVERNMENT  21 

year.  If  necessary  it  was  called  to  meet  in  special  sessions.  The  questions 
were  submitted,  for  deliberation  and  advice,  in  the  name  of  the  Emperor,  whose 
prerogative  it  was  to  adopt  or  to  reject  the  recommendations  of  the 
Assembly.  There  was  a  standing  instruction  to  the  local  governors  that  in 
taking  part  in  the  debate  of  the  Assembly  they  were  to  regard  themselves  as  the 
representatives  of  the  people  inhabiting  the  territory  under  their  respective  juris- 
dictions. The  local  governors  were  assured  that  they  were  not  to  be  questioned 
or  held  responsible  outside  the  House  for  whatever  they  might  say  at  the  meet- 
ings of  the  Assembly.  While  therefore  the  local  governors  were  under  the  con- 
trol and  supervision  of  the  Minister  of  State  for  Home  Affairs  in  the  discharge 
of  their  duties  as  the  administrators  of  the  respective  provinces  or  prefectures 
assigned  to  them,  they  were  nevertheless  permitted  to  criticize  the  domestic 
policy  of  the  central  government  in  the  Assembly  as  much  as  they  wished  to  do. 
This  may,  therefore,  be  said  to  be  the  beginning  of  the  representative  system 
in  the  central  government  of  Japan. 

The  session  held  in  December,  1880,  was  the  last  of  the  sessions  of  the 
Assembly  of  Local  Governors.  Even  now  meetings  of  local  governors  are  held 
in  Tokio  once  every  year,  but  the  meaning  of  the  meeting  has  changed  since 
1881.  Up  to  1881  the  local  governors  were  convened  as  the  representatives  of 
the  people  living  in  their  respective  prefectures.  Since  that  date  they  have  been 
convened  to  meet  in  Tokio  as  officials  representing  the  central  government  in 
the  provinces.  The  reason  of  this  change  is  that  in  July,  1878,  local  assemblies 
were  created  by  law,  one  in  each  prefecture ;  that  is  to  say,  every  administrative 
district  that  had  a  local  governor  now  had  a  local  assembly  which  was  a  repre- 
sentative body  elected  by  the  people  of  that  district.  vSimultaneously  with  th-i 
creation  of  local  assemblies  for  prefectures,  assemblies  for  smaller  administra- 
tive vmits  were  created  one  for  each  imit,  that  is  to  say,  a  city  assembly  for  a 
city,  a  town  assembly  for  a  town,  and  a  village  assembly  for  a  village.  The 
members  of  these  bodies  were  all  elected  by  the  ballots  of  the  people  entitled 
to  vote  in  the  territory  covered  by  each  city,  town  or  village,  as  the  case  might  be. 

The  power  of  the  local  assemblies  created  in   1878  was  as   follows : 

1.  To  vote  the  budget  of  the  expenditures  to  be  defrayed  by  local  taxation, 

and  to  determine  the  method  of  the  levy  and  collection  of  local  taxes. 

2.  To  receive  from  the  governor  and  to  examine  reports  on  the  disburse- 

ments made  out  of  the  revenue  derived  from  local  taxation. 
.3.  To  express  opinion  on  its  own  initiative  to  the  government  regarding  mat- 
ters touching  the  interest  of  the  respective  prefectures. 

4.  To  express  opinion  in  answer  to  questions   submitted  by  the  governor 

regarding  matters  touching  the  interest  of  the  prefecture. 

5.  To   determine   rules   governing  its   deliberation,   that   is   to   say,   its   own 

by-laws. 


22  GROWTH  OF  LIBERALISM  IN  JAPAN 

On  February  11,  1889,  the  Constitution  of  Japan  was  promulgated,  which  took 
effect  from  November,  1890,  upon  the  opening  of  the  national  parliament  called 
the   Imperial   Diet. 

In  May,  1890,  laws  of  the  organization  of  prefectures,  of  counties,  as  well 
as  of  cities,  towns  and  villages,  were  promulgated.  These  laws  were  later 
amended,  but  were  all  based  on  the  principle  that  the  prefectures,  the  counties 
as  well  as  the  cities,  towns  and  villages,  were  self-governing  corporate  bodies. 
Article  2  of  the  present  Law  of  Organization  of  Prefectures  provides: 

Article  2.  Prefectures  are  juridical  persons.  They  are  subject  to  the 
supervision  and  control. of  the  government,  but  within  the  limits  of  laws 
and  ordinances  they  shall  have  the  power  to  manage  their  own  public  affairs 
as  well  as  such  other  matters  as  appertain  to  them  under  the  provisions  of 
a  law  or  an  ordinance  or  by  usage  and  custom. '^ 

In  the  narrow  compass  of  a  single  address  it  is  impossible  to  go  into  the 
details  of  the  various  representative  institutions  which  exist  in  Japan  for  the 
purposes  of  government,  both  national  and  local.  Let  me  conclude  by  giving 
you  some  data  relating  to  the  organization  of  the  House  of  Representatives  of 
the  Imperial  Diet,  which  corresponds  to  the  House  of  Commons  of  the  British 
Parliament,  and  of  the  Local  Assemblies. 

The  number  of  seats  in  the  House  of  Representatives  is  381.  Of  the  total 
number  76  members  are  returned  by  large  cities  while  the  rest  of  the  Empire, 
excluding  Formosa  and  Corea  but  including  Hokkaido  and  Loochoo  Islands,  re- 
turn 305  members. 

The  suft'rage  for  the  election  of  members  of  the  House  of  Representatives 
is  limited  to  Japanese  male  subjects  of  twenty-five  years  of  age  or  more,  who 
have  had  their  domicile  continually  Avithin  the  electoral  district  for  a  period  of 
at  least  one  year  prior  to  the  time  fixed  for  the  making  of  the  roster  of  electors, 
and  who  moreover  satisfy  one  or  the  other  of  the  following  property  quali- 
fications : 

1.  That  the  person  had  paid  national  land  tax  amounting  to  ten  yen 
or  more  for  a  period  of  not  less  than  one  year  preceding  the  time  fixed 
for  the  making  of  the  roster  of  electors,  and  that  he  continues  so  to  pay,  or 

2.  That  the  person  had  paid  direct  national  tax,  other  than  land  tax, 
amounting  to  ten  yen  or  miore,  or  had  paid  a  sum  of  ten  yen  or  more  as 
direct  national  tax  taking  his  land  tax  as  well  as  other  direct  national  taxes 
together,  for  a  period  of  two  years  preceding  the  time  fixed  for  the  making 
of  the  roster  of  electors,  and  that  he  continues  so  to  pay. 

In  the  case  of  succession,  upon  the  death  of  the  head  of  a  family,  the  amount 
of  taxes  paid  by  the  deceased  is,  for  the  purpose  of  qualification  for  election, 

1  The  Law  of  the  Organization  of  Pr.efectv:res  now  in  force  is  Law  No.  64  of  March 
16,  1899,  as  amended  by  Law  No.  2  of  1908  and  Law  No.  35  of   1914. 


THE  GROWTH  OF  REPRESENTATIVE  GOVERNMENT  23 

regarded  as  the  taxes  paid  by  the  heir.  The  sum  of  ten  yen  is  equal  to  five 
dollars  of  the  Canadian  or  American  currency,  so  that  the  tax  qualification  may 
be  said  to  be  on  the  basis  of  a  pound  a  year.^ 

In  1912  the  population  of  Japan  excluding  Corea,  Formosa  and  Saghalien, 
was  52,522,753,  of  which  26,5+4,759  were  males.  In  that  year  the  number  of 
men  entitled  to  vote  within  the  same  area  was  1.503,968.  The  votes  actually  cast 
which  were  valid  amounted  to  1,388,528,  while  the  number  of  votes  rejected  as 
null  and  void  was  10,653.^ 

Regarding  the  qualification  to  become  a  member  of  the  House  of  Repre- 
sentatives there  is  no  limitation  further  than  that  the  person  must  be  a  Japanese 
male  subject  of  thirty  years  or  more,  and  must  not  be  under  civil  disability  or  a 
bankrupt  or  an  ex-convict  who  has  not  regained  the  exercise  of  his  public  rights.^ 

The  franchise  for  the  election  of  members  of  a  local  assembly  is  limited  to 
such  public  citizens  of  a  city,  town  or  village  within  the  boundary  of  the  prefec- 
ture as  have  the  right  to  vote  for  the  election  of  the  members  of  the  city,  the 
town,  or  the  village  assembly,  as  the  case  may  be,  and  who  moreover  have  paid, 
for  a  period  of  at  least  one  year,  direct  national  tax  amounting  to  three  yen 
or  more. 

The  tax  qualification  for  being  elected  a  member  is  higher  than  that  for 
franchise.  In  order  to  be  eligible  the  man  must  have  paid  a  sum  of  ten  yen 
or  more  as  direct  national  tax  during  the  preceding  year  and  must  continue  to 
pay  the  same. 

Conclusion 

I  have  now  traced  as  briefly  as  possible  the  political  changes  which  took 
place  in  Japan  from  1867  to  1900.  In  1867  the  right  of  sovereignty  in  the  hands 
of  the  Emperor  of  Japan  was  only  nominal.  The  country  was  absolutely  feudal 
and  presented  a  state  of  afifairs  one  sees  in  the  middle  ages  of  European  history. 
The  internal  political  difficulties  arising  from  the  opening  of  the  relations  of 
diplomatic  intercourse  with  foreign  nations,  consequent  upon  the  advent  of 
Commodore  Perry  in  the  Bay  of  Yedo,  accelerated  the  downfall  of  the  Tokugawa 
Shogunate.  On  October  14,  1867,  Tokugav/a  Yoshinobu,  the  last  of  the  reigning 
feudal  overlords,  surrendered  to  the  Emperor  his  dc  facto  sovereignty.  "The 
people  shall  be  made  to  conform  themselves  to  law.  they  shall  not  be  permitted 
to  know  what  the  law  is"  was  the  principle  of  government  in  ancient  China. 
That  tyrannical  principle  had  been  adopted  in  Japan.     The  Emperor  Meiji  upon 

^  Article  8  of  the  Law  of  Election  of  the  Members  of  the  House  of  Representntives, 
promulgated  as  Law  No.  7Z  on  March  29,  1900.  One  yen  is  equal  to  fifty  cents  or  slightly 
more  than  two  shillings. 

~  See  Resume  Statistique  de  I'Empire  du  Japan,  Tokio,  1917,  pages  6  and  201. 

3  Articles  10  and  11  of  the  Law  of  Election  of  the  Members  of  the  House  of  Repre- 
sentatives. 


24  GROWTH  OF  LIBERALISM  IN  JAPAN 

resumption  of  sovereignty  reversed  this  system,  and  adopted  the  enlightened  rule 
that  every  law  before  it  can  be  enforced  must  be  made  known  to  the  people. 
Moreover,  of  his  own  free  volition.  His  Majesty  took  the  vow  that  means  should 
be  devised  whereby  legitimate  public  opinion  might  be  ascertained  through  free 
expression  in  a  representative  assembly.  As  the  forerunner  of  and  in 
preparation  for  the  opening  of  a  representative  national  legislature  the  Em- 
peror created  a  Senate  in  1875,  the  members  of  which  were  appointed  by  him 
from  among  the  nobles,  the  officials  of  the  government  and  the  men  learned  in 
political  science  as  well  as  in  law.  This  body  served  as  the  consultative  as- 
sembly in  the  drafting  and  adoption  of  laws  until  a  bicameral  legislature  called 
the  Imperial  Diet  came  into  existence  in  1890  in  pursuance  of  the  Constitution 
of  the  Empire  promulgated  on  February  11,  1889.  In  1878  Emperor  Meiji 
caused  local  assemblies  to  be  convened,  one  in  each  prefecture,  with  authority  to 
determine  the  annual  budget  of  public  expenditures  to  be  defrayed  out  of  the 
revenue  obtained  by  local  taxation,  as  well  as  the  means  of  raising  such  revenue. 
The  opening  of  such  local  assemblies  was  designed  as  the  preparation  for  the 
adoption  of  the  system  of  local  self-government  which  was  introduced  in  1890. 
Thus  the  transformation  of  Japan  from  a  feudal  state  into  a  modern  constitu- 
tional monarchy  with  local  autonomy  throughout  the  Empire  was  accomplished 
within  a  brief  space  of  twenty-three  years.  Such  transformation,  however,  was 
effected  neither  by  one  stroke  nor  in  one  period.  There  were  successive  stages 
in  the  process  of  transformation;  and  the  care  with  which  each  step  forward  was 
taken  would  undoubtedly  excite  the  admiration  of  the  world,  if  such  details  were 
better  known.  It  is  the  study  of  such  details  that  enables  us  to  discover  that  in 
the  modern  democratization  of  Japan  the  Imperial  Throne  has  been  the  center 
of  the  movement. 

Feudalism  is  a  system  of  privileges.  It  is  the  military  aristocracy  that 
governs.  This  system  of  privileges  was  abolished  in  Japan  by  the  revival  of 
Imperialism.  Imperialism  carried  with  it  the  principles  of  democracy,  for  it 
insisted  on  the  theory  that  the  Emperor  was  the  head  of  the  great  family  to 
which  all  other  families  in  the  Empire  stood  in  relation  of  branches  to  the  main 
stock.  All  the  people  of  Japan  are  equally  the  subjects  of  the  Emperor,  and  no 
subject  may  claim  the  right  to  govern  another  excepting  in  special  cases  recog- 
nized by  law,  such  as  the  exercise  of  parental  authority  by  the  father  or  mother 
over  children.  As  your  democracy  insists  on  the  equality  of  men  before  the 
law,  before  taxation  and  before  the  ballot  box,  so  does  the  democracy  of  Japan 
insist  on  the  equality  of  all  before  the  Emperor  who  alone  is  clothed  with  the 
authority  to  reign  subject  to  the  Constitution.  A  distinguished  British  statesman 
once  said  that  the  greatest  asset  of  the  British  Empire  was  the  Crown.  With 
equal  truth  may  it  be  said  that  the  most  valuable  heritage  of  the  Japanese 'nation 
is  its  Imperial  family. 


V   $.  -«  A! 


